Kerala High Court
Dr. Sreelal A vs State Of Kerala on 21 January, 2025
2025:KER:4669
W.P.(C). Nos.25355 of 2021 & 20428 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 21ST DAY OF JANUARY 2025 / 1ST MAGHA, 1946
WP(C) NO. 25355 OF 2021
PETITIONERS:
1 DR. SREELAL A.,
AGED 55 YEARS
S/O. ARAVINDAN, CLINICAL PSYCHOLOGIST, ASWATHY, TC
2/1235, POTTAKUZHI, PATTOM P.O.,
THIRUVANANTHAPURAM.
2 BINDU S.,
AGED 49 YEARS
W/O. RAJEEV R. INDUKANDHAM, KATTAYIKONAM P.O.,
THIRUVANANTHAPURAM.
BY ADVS.
Nandakumar P
AMRUTHA SANJEEV(K/001000/2016)
VIVEK VIJAYAKUMAR(K/1018/2016)
RIYA TOMY(K/002324/2021)
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT
SECRETARIAT, PALAYAM, THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS,
DIRECTORATE OF PUBLIC INSTRUCTIONS, JAGATHY,
THIRUVANANTHAPURAM-695014.
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3 THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTIONS,
DIRECTORATE OF PUBLIC INSTRUCTIONS, JAGATHY,
THIRUVANANTHAPURAM-695014.
OTHER PRESENT:
SPL GP ANTONY MUKKATH
GP - NIMA JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.01.2025, ALONG WITH WP(C).20428/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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W.P.(C). Nos.25355 of 2021 & 20428 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 21ST DAY OF JANUARY 2025 / 1ST MAGHA, 1946
WP(C) NO. 20428 OF 2023
PETITIONERS:
1 DR. SREELAL A
AGED 57 YEARS
S/O ARAVINDAN, CLINICAL PSYCHOLOGIST, ASWATHY, TC
2/1235, POTTAKUZHI, PATTOM, THRIRUVANATHAPURAM,
PIN - 695004
2 BINDU S
AGED 51 YEARS
W/O RAJEEV R, INDUKANDHAM, KATTAYIKONAM,
THIRUVANANTHAPURAM, PIN - 695584
BY ADVS.
P.NANDAKUMAR
AMRUTHA SANJEEV
VIVEK VIJAYAKUMAR
RIYA TOMY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT
SECRETARIAT, PALAYAM, THIRUVANANTHAPURAM, PIN -
695001
2 THE DIRECTOR OF GENERAL EDUCATION
DIRECTORATE OF GENERAL EDUCATION, JAGATHY,
THIRUVANANTHAPURAM, PIN - 695014
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3 C.H MOHAMMED KOYA MEMORIAL STATE INSTITUTE FOR THE
MENTALLY CHALLENGED (SIMC)
PANGAPPARA, THIRUVANANTHAPURAM , REPRESENTED BY ITS
DIRECTOR., PIN - 695581
4 JENSY VARGHESE
DIRECTOR, C.H MOHAMMED KOYA MEMORIAL STATE
INSTITUTE FOR THE MENTALLY CHALLENGED (SIMC),
PANGAPPARA, THIRUVANANTHAPURAM, PIN - 695581
5 THE SELECTION COMMITTEE FOR THE POST OF DIRECTOR,
C.H MOHAMMED KOYA MEMORIAL STATE INSTITUTE FOR THE
MENTALLY CHALLENGED (SIMC),
REPRESENTED BY ITS CHAIRMAN, THE SECRETARY TO
GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION,
GOVERNMENT SECRETARIAT, PALAYAM,
THIRUVANANTHAPURAM, PIN - 695001
6 THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU
DIRECTORATE OF VIGILANCE AND ANTI CORRUPTION
BUREAU, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM,
PIN - 695033
BY ADVS.
GOVERNMENT PLEADER - SMT. NIMA JACOB
P.Ramakrishnan Ramakrishnan Adv
PREETHI RAMAKRISHNAN (P-212)(K/000726/1987)
T.C.KRISHNA(K/000802/1990)
C.ANIL KUMAR(K/000906/1993)
ASHA K.SHENOY(K/000576/1999)
PRATAP ABRAHAM VARGHESE(K/000235/2005)
GOKUL KRISHNA(K/001228/2022)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.01.2025, ALONG WITH WP(C).25355/2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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W.P.(C). Nos.25355 of 2021 & 20428 of 2023
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VIJU ABRAHAM, J.
-- -- -- -- -- -- -- -- -- -- -- -- --
W.P.(C) Nos.25355 of 2021 & 20428 of 2023
-- -- -- -- -- -- -- -- -- -- -- -- --
Dated this the 21st day of January, 2025
JUDGMENT
Since a common issue is involved in both these writ petitions,
they were heard and disposed of by a common judgment.
2. W.P.(C) No.25355 of 2021 is filed seeking a direction to the
respondents not to make any appointment pursuant to Ext.P1
notification without and before publishing a rank list on the basis of
the qualifications of each candidates. This writ petition was filed at
a time when the petitioners apprehended that one Jensy Varghese,
who is closely known to the 3 rd respondent and who is totally
ineligible, is going to be appointed to the post of Director of the
C.H.Muhammedkoya Memorial State Institute for Mentally
Challenged, without even publishing a rank list. The learned
counsel appearing for the petitioners submits that an interim order
was issued by this Court interdicting the respondents from issuing
any order of appointment pursuant to Ext.P1 notification without
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publishing the rank list of the candidates. The learned counsel
appearing for the petitioners submits that the appointment was
made to the post of Director by appointing Smt.Jensy Varghese,
who is the 4th respondent in W.P.(C) No.20428/2023, as per Ext.P7
order. It is challenging Ext. P7 order that W.P.(C) No.20428/2023
is filed.
3. When the matter was taken up for consideration, the
learned counsel appearing for the petitioners submits that the 4 th
respondent, who was appointed as per Ext.P7 order for a period of
one year, was later on terminated from service. The said fact is not
disputed by the learned Counsel appearing for the 4 th respondent.
Therefore, it is the submission of the learned Counsel appearing for
the petitioners that since the 4 th respondent has already been
terminated from the post, the respondents ought to have appointed
the 2nd petitioner to the post of Director of the 3 rd respondent
institute in W.P.(C)No.20428/2023 as she is the 2 nd rank holder.
The contention of the learned counsel appearing for the petitioners
is that without appointing the persons from the rank list, the
Government is proceeding for a fresh selection. Only for the reason
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W.P.(C). Nos.25355 of 2021 & 20428 of 2023
that the 4th respondent has been terminated from the post, this
Court cannot issue a direction to the Government to consider the
case of the petitioners for being appointed as Director of the 3 rd
respondent institute and such a direction if any could be issued to
the Government only if this Court finds that Ext.P7 order granting
appointment to the 4th respondent is bad in law. Therefore, I am
proceeding to consider the validity of Ext.P7, which is challenged
in W.P.(C)No.20428 of 2023. The facts as discernible from W.P.(C)
No.20428 of 2023 are as follows:
4. The 1st petitioner is presently working as a Clinical
Psychologist (Higher Grade) at Government Mental Health Centre,
Thiruvananthapuram, whereas the 2 nd petitioner is working as a
Specialist Teacher at C.H.Mohammed Koya Memorial State
Institute for The Mentally Challenged (SIMC), Pangappara,
Thiruvananthapuram for the last 14 years. The 2 nd respondent -
Director General of Education has issued Ext.P1 notification for the
appointment to the post of Director on contract/deputation basis
for a period of 5 years or on attaining the age of 60 years,
whichever comes earlier. As per the said notification, the
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qualification prescribed was a minimum Second Class Post
Graduate Degree in Clinical Psychology / Psychology / Social Work
and experience of not less than 7 years in an Institute for Mentally
Challenged Children in a supervisory / teaching post. It is also
mandated that the preference will be given for persons who are
having higher qualifications in the field. It is contended that the
petitioners are fully qualified for the post of Director in the 3 rd
respondent institute. 19 candidates were interviewed and even
before publishing the Select List, it was decided to appoint the 4 th
respondent as the Director of the 3 rd respondent institute.
Thereupon the petitioners filed WP(C)No.25355 of 2021 before this
Court seeking a direction not to make any appointments pursuant
to Ext.P1 notification before publishing the Select List and Ext.P4
interim order was granted as sought for in the writ petition. Later,
the 4th respondent filed WP(C)No.15154 of 2022 seeking a
direction to appoint her as the Director of the 3 rd respondent
institute, since she has been ranked 1st in the Select List and this
Court as per Ext.P5 judgment directed the respondents to effect
appointment from the rank list in question, in the order of the rank
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available therein, after following due procedure at any rate within
an outer limit of one month. The contention of the petitioners is
that the said writ petition was filed without making them parties to
the proceedings and therefore, the 1st petitioner filed RP No.673 of
2022 seeking review of Ext.P5 judgment. The said review petition
was disposed of as per Ext.P6, leaving open the right of the review
petitioners to challenge the rank list, if they are aggrieved by the
same. In the meanwhile Ext.P7 order was issued appointing the 4 th
respondent as the Director of the 3 rd respondent institute. It is the
contention of the petitioners that the 1 st petitioner is a PhD holder
in Psychology from the University of Calicut in the subject "Early
Behavioral Intervention for Childhood Autism" and that he has also
taken MPhil in Medical and Social Psychology from NIMHANS
Bangalore and also MA in Psychology from the University of
Kerala. He has more than 20 years experience in the related field
under the Government of Kerala. The 2 nd petitioner is having MA
Sociology and also MA in Clinical Psychology. She had also
acquired BEd and MEd in Special Education Mental Retardation
and also having 14 years of experience as a Special Teacher. It is
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further contended that the 4th respondent does not possess any
regular Post Graduate Degree in Clinical Psychology/ Psychology/
Sociology/ Social Work as prescribed in Ext.P1 notification and
have no experience in any supervisory / teaching post in an
Institution for Mentally Retarded Children and it appears that she
is only having Second Class MA in Sociology from Annamalai
University acquired through correspondence course. It is the
further contention of the petitioners that all her experience
certificates obtained were from private Institutions which were
acquired prior to the acquisition of the basic qualifications. It is
only due to the favoritism shown by the Board towards the 4 th
respondent, she was selected for appointment. In the said
circumstances the 1st petitioner has preferred Ext.P9 complaint
before the 6th respondent-Director of Vigilance seeking intervention
in the matter and to the knowledge of the petitioners the 6 th
respondent had sought for permission from the Government to
conduct a preliminary enquiry as per letter No.E1-
29444/2022/DVACB dated 03.12.2022. It is also submitted that the
Executive Council of the 3rd respondent institute convened a
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meeting on 21.03.2023 and took a decision to amend the
qualifications for the post of Director by adding regular MEd in
Special Education as a qualification so that the 4 th respondent
would be qualified to hold the post. Against the said decision the 1 st
petitioner submitted Ext.P11 complaint before the Government. It
is in the above said circumstances that the present writ petition has
been filed.
5. The 4th respondent has filed a counter affidavit stating that
all the procedures for selection were complied and she was
assigned rank No.1 and based on the rank in the ranked list, she
was appointed to the post of Director. It is also contended that the
petitioners having participated in the selection process and did not
get selected, have no right to challenge the selection process and
that the only intention of the petitioners is to block her chance of
further extension of appointment. It is also contended that as per
Ext.P1 notification the applicant should have at least 2 nd class
masters degree in Clinical Psychology/Psychology/Sociology/social
work and the 4th respondent has secured 2nd class Masters Degree
in Sociology. It is further contended that as per Ext.P1 notification,
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the applicants should have minimum 7 years experience in
Supervisory/Teaching post in an institution related to mentally
challenged students and the 4 th respondent has worked as Principal
at the Karuna Special School Vypin, Nayarambalam during the year
2002 to 2006 as evident from Ext.R4(a). The 4 th respondent has
also worked as Principal cum Administrator in Vimukthi Special
School run by Mar Gregorius Trust, Kalamassery during June, 2014
to September, 2017as evident from Ext.R4(b) and also worked as
Lecturer for one year and Principal for one year in Janey College of
Allied Health, Eroor, Kochi as evident from Ext R4(c) certificate
issued by the said institution. The 4th respondent also worked as
Lecturer in Composite Regional Centre for skilled Development
Rehabilitation and Empowerment of persons with Disabilities under
the Ministry of Social Justice and Empowerment Government of
India, Kozhikode during the period from October 2017 to February
2021 as evident from Ext.R4(d) certificate. It is also contended that
Ext.P1 notification give preference to those who have higher
educational qualification in the field of Special Education and the
4th respondent has passed Diploma, B.Ed and M.Ed in regular
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courses in Special Education. She is also pursuing her Ph.d in
Special Education from Avinashi Lingam University, Coimbatore. It
is further contended that the 4th respondent was also interviewed
and she came first in the rank list. It is only after the interference
by this Court as per the judgment in WP(C)No.15154/2022 that the
4th respondent was appointed as Director initially for a period of
one year and since the selection was made in accordance with law
and following all the procedures, no interference is called for to
Ext.P7 order of appointment.
6. A reply affidavit has been filed by the petitioners wherein it
is contended that the 4 th respondent is a person who is not even
eligible to apply pursuant to Ext.P1 notification, since she does not
have 7 years post qualified experience. Even going by the
documents produced by the 4th respondent, ie., R4(b) to R4(d)
certificates, she would acquire the necessary post qualified
experience only in June, 2021 as the post qualified experience
starts only in June, 2014. It is also contended that it is trite law that
where the Special Rules or Recruitment Rules for a post prescribes
qualification of experience, it shall, unless otherwise specified, be
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one gained by persons after acquiring the basic qualification
prescribed for the post. In view of the above, it is contended that
the 4th respondent who does not have the requisite qualification
prescribed in Ext.P1 notification, is ineligible even to apply for the
post and therefore, Ext.P7 order is liable to be interfered with.
7.The learned Government Pleader on the strength of the
counter affidavit field in W.P.(C) No.25355 of 2021 would contend
that 19 candidates including the petitioners and the 4 th respondent
have applied for the post of Director and it is only after a fair and
proper selection process that the rank list was published in which
the 4th respondent was assigned rank No.1. It is also submitted
that the Government have decided not to renew the contract of the
4th respondent and the request made by the 4 th respondent for
extension of contract for another year was not considered as per
G.O.(Rt)No.4174/2023/GEDN dated 19.07.2023 and that the
Government may be permitted to go on with fresh selection process
to find a new person to the post of Director of the 3 rd respondent
institute. It is also submitted that the 4 th respondent has satisfied
the minimum academic qualification and has also the minimum
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W.P.(C). Nos.25355 of 2021 & 20428 of 2023
experience of 7 years as per Ext.P1 notification. An additional
affidavit has also been filed by the Government stating that there is
an allegation against the 4th respondent that on 15.08.2023 after
the Independence Day Celebrations, the 4 th respondent along with
some other employees brought 9 students who came through
Student Welfare Committee to the residence of the 4 th respondent,
without taking prior permission of the Chairman or Government
and while so a student from the group was found missing and on
search he was found out from the road side around 2 Kms away
from the Director's residence within an hour by the supporting
staff of the institution. A preliminary enquiry was conducted and it
was found that the act of the 4th respondent who is the Director, is
highly irresponsible and therefore, she cannot be allowed to
continue in the post of Director of the 3rd respondent institute.
8. I have heard the contentions on both sides.
9. First question to be considered is the contention of the
learned Counsel for the 4th respondent that the petitioner cannot
challenge the selection after having participated in the selection
process. I am afraid that the said contention cannot be accepted in
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W.P.(C). Nos.25355 of 2021 & 20428 of 2023
the light of the Division Bench Judgment of this Court in Razia K.
I. (Dr.) v. University of Kerala, Thiruvananthapuram and
Others [2022 (2) KHC 623].
10. The further question to be considered is as to whether the
4th respondent was entitled for being appointed as Director of the
3rd respondent institute as per Ext.P7. The contention raised by the
learned counsel for the petitioners is that 4 th respondent was not at
all qualified for even applying for the said post pursuant to Ext.P1
notification, since she does not have 7 years' of post qualified
experience. Going by Ext.P1, the qualification prescribed for the
post is minimum Second Class Post Graduate Degree in Clinical
Psychology / Psychology / Social Work and experience of not less
than 7 years in an Institute for Mentally Challenged Children in a
supervisory / teaching post. The contention of the learned counsel
for the petitioners is that this work experience of 7 years should be
acquired after the candidate attaining the qualification prescribed
as per Ext.P1. It is the contention of the petitioners that the 4 th
respondent has passed MA in Sociology from the Annamalai
University only in December 2013, as per Ext.P12 certificate. It is
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W.P.(C). Nos.25355 of 2021 & 20428 of 2023
also contended that the experience certificate Ext.R4(a) reveals
that the same is for the period 2002 to 2006 and Ext.R4(b) would
reveal that the experience certificate was issued for the period
from 2014 to 2016. Ext.R4(c) would reveal that the 4 th respondent
has experience of one year from February 2013 to February 2014
and Ext.R4(d) reveals that she has experience from 2017 to 2021.
The specific contention is that the 4 th respondent as per Ext.R4(b)
to R4(d) certificates would acquire the necessary post qualified
experience only in June 2021, as her post qualified experience
starts only in June 2014 and contended that she does not have the
requisite post qualified experience mandated as per Ext.P1 and
that Ext.R4(a) experience certificate during the year 2002 to 2006,
is one undergone before she got qualified for the post. The learned
counsel for the petitioners submits that going by Rule 10(ab) of
Part 2 of Kerala State and Subordinate Service Rules, 1958
(hereinafter referred to as "the KS & SSR") whenever qualification
of experience is prescribed, basic qualification should proceed it
and when considering the experience, unless the context otherwise
demand, it should be taken as experience after acquiring the
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minimum qualification required and therefore, necessarily will
have to be posterior to the acquisition of the qualification . The
learned Government Pleader submitted that the 3 rd respondent
institute is an autonomous Society registered under the Charitable
Societies Registration Act, 1995 and therefore, provisions of the
KS & SSR cannot be made applicable, to which the learned counsel
for the petitioners relying on the government order, G.O.No.1960/
2019/GENEDN dated 28.05.2019, a copy of which has been handed
over to this Court, submits that in the said Order, the Government
have granted permission to follow KS &SSR, KSR, Last Grade
Servants Special Rules in the case of 3 rd respondent institute till
Special Rules are framed. The said Government Order dated
28.05.2019 is extracted below.
"ത ര വനനപ ര , പ ങപ റയ ല സ .എച മ ഹമദ ക യ
ലമകമ റ യൽ ക റ ഇൻ ററ!"ട ക$ ർ ദ ലമൻറ
ച ഞഡ (എസ.ഐ.എ .സ ) എന സ പനത ൽ പര മർശ
(1), (2) ഉതരവ ൾ പപ ര സ രലപട ത യ 14
ജ3വനക ര ലട ലപപ ക5ഷൻ ത7പ9 രമ യ
പ"ർത3 ര ചത യ പപഖ! പ ക നത ന അന മത
നൽ ണലമന , പപസ9 ത ജ3വനക ര ലട ലപപ ക5ഷൻ,
അവധ , യ പത 5ത ത ടങ യ സർവ3സ സ 5നമ യ
നടപട പ മങൾക ല .എസ ആൻറ എസ.എസ.ആർ,
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ല .എസ.ആർ, കപBഡ സർവൻറസ സലപഷ!ൽ റ"ൾ
എന വയ ല വ!വസ ൾ, സലപഷ!ൽ റ"ൾ ന വൽ
വര നത വലര, 5 ധ മ കന ര!
പര Bണ കണലമന പര മർശ (3), (4) ത ൾ പപ ര
എസ.ഐ.എ .സ ഡയറകDർ അഭ!ർത ക യണ യ .
(2) സർക ർ ഇക ര! വ ശദമ യ പര കശ ധ ച .
എസ.ഐ.എ .സ -യ ൽ സർവ3സ റ"ൾ ന വൽ
വര നത വലര സ ര ജ3വനക ര ലട അവധ സ 5നമ യ
ല .എസ.ആർ-ല നടപട പ മങൾ പ ന ടര നത ന ,
ല .എസ.ആർ - ഭ B 11 ല യ പത 5ത ചടങൾ
സ പനത ല സര ജ3വനക ർക
5 ധ മ ക നത , എന ൽ യ പത 5ത
അന വദ ക നത മ യ 5നലപട സർക ർ
പ റലപട വ ക ന ഉതരവ ള സർക ർ ന ർകIശങള ,
കവ! മയ പതയ മ യ 5നലപട ള വ!യന യപനണ
ഉതരവ ള ർശനമ യ പ കകണത ലണന
09.09.2016 ല സ.ഉ(പ )നമർ. 137/2016/ധന ഉതരവ
പപ ര സ സന സർക ർ ജ3വനക ർക
ഏർലപട ത യ ട ള യ പത 5ത പര ധ എസ.ഐ.എ .സ
യല ജ3വനക ർക 5 ധ മ കകണത ലണന മ ള
ന 5നനകയ ലട, ട സ പനത ൽ സർവ3സ റ"ൾ ന വൽ
വര നത വലര ല .എസ & എസ.എസ.ആർ, കപBഡ
സർവൻറസ സലപഷ!ൽ റ"ൾ എന വയ ല വ!വസ ൾ
പ ന ടര നത ന എസ.ഐ.എ .സ ഡയറകDർക അന വ ദ
നൽ ഉതരവ പ റലപട വ ക ന .
(3)എസ.ഐ.എ .സ -യ ല ജ3വനക ര ലട കസവന
വ!വസ ൾ ര"പ3 ര ക നത ന ള അട യന ര നപട ൾ
എസ.ഐ.എ .സ ഡയറകDർ സM3 ര കകണത ണ."
On the basis of the same the petitioners would contend that the
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W.P.(C). Nos.25355 of 2021 & 20428 of 2023
provisions of KS & SSR, especially Rule 10(ab) is applicable in the
present case. It is profitable to refer to Part 2 Rule 10(ab) KS &
SSR, which reads as follows:
"10(ab) Where the Special Rules or Recruitment Rules
for a post in any service prescribe qualification of
experience, it shall, unless otherwise specified, be one
gained by persons on temporary or regular appointment
in capacities other than paid or un paid apprentices,
trainees and Casual Labourers in Central or State
Government Service or in Public Sector Undertaking or
Registered Private Sector Undertaking, after acquiring
the basic qualification prescribed for the post"
The learned counsel for the petitioners also relies on the judgment
in Sirajudheen v. PSC [1998 KHC 500] wherein This Court
referring to Rule 10(ab)of KS & SSR held in paragraph 5 as follows:
"Confronted with the above Rule the learned counsel for
the petitioner submitted that R. 10(ab) applies only
where the Special Rules or recruitment rules for a post
in any service prescribed the qualification of experience
and not a case where the above experience was
prescribed by a notification as in the givencase. But I do
not think such a narrow interpretation can be given to
R.10(ab) of K.S. & S.S.R. What is relevant and material
is to find out whether a special qualification like
experience has to be acquired before or after acquiring
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the basic qualification prescribed for the post. R.10(ab)
cannot be limited to the cases where the Special Rules
or the recruitment rules prescribe the qualification of
experience and not to other cases. According to me,
wherever a qualification of experience is prescribed
either by the Special Rules or by recruitment rules or by
any other method it must have been acquired after the
acquisition of the basic qualification. The only exception
is that the Rules must specifically state that one can
acquire the qualification of experience even before
acquiring the basic qualifications. In all other cases the
general R. 19(ab) will apply."
In Basheer A.(Dr.) v. Dr. Saiful Islam A. and Others[2014 (4)
KHC 379] the Full Bench of this Court referring to Rule 10(ab) of
KS & SSR held that experience prescribed should be one acquired
after acquisition of the basic educational qualifications prescribed
for the post, when the vacancies were notified for direct
recruitment. Paragraph 24 of the said judgment reads as follows:
"24. As already detailed above, by virtue of Statute 10 of
the First Statutes, K.S.& S.S.R has been adopted by the
University and is made applicable to the teachers in the
University. As per Rule 10(ab) of Part II K.S. & S.S.R,
for direct recruitment, when qualification of experience
is prescribed in the Rules, it shall, unless otherwise
specified in the recruitment rules, be gained after
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acquiring the basic educational qualifications prescribed
for the post. One of the qualifications for appointment to
the post of Reader prescribed in the regulations is 8
years experience. Regulations do not specify that the
experience need not be one acquired after acquiring the
basic educational qualification. Therefore, there is no
indication in the Regulation whatsoever that the
experience gained before acquiring the educational
qualification would suffice. If that be so, if the provisions
of the regulations prescribing the educational
qualification and experience prescribed for the post of
Reader are read in the light of Rule 10(ab) of Part II K.S.
& S.S.R., conclusion is irresistible that the experience
prescribed in the regulations should be one gained after
acquiring the basic educational qualifications
prescribed."
The learned counsel for the petitioners would submit that even if
the contention of the learned Government Pleader that provisions
of Rule 10(ab) of KS & SSR is not applicable to the present institute
is accepted for arguments sake, the Apex Court has considered the
issue and held that qualification of experience has to be acquired
after the acquisition of the qualification. The learned counsel for
the petitioners also relies on the judgment of the Apex Court in
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Sheshrao Jangluji Bagde v. Bhaiyya S/o Govindrao Karale
and Others [(1991) KHC 703] wherein the Court held that
experience, unless the context otherwise demands, should be taken
as experience after acquiring the minimum qualifications, required
and, therefore, necessarily will have to be posterior to the
acquisition of the qualification. A similar view was taken by the
Apex Court in Indian Airlines Ltd. and Others v. S.
Gopalakrishnan [2001 KHC 3919]. Paragraph 5 of the said
judgment reads as follows:
"When in addition to qualification, experience is
prescribed, it would only mean acquiring experience
after obtaining the necessary qualification and not
before obtaining such qualification. In the case of the
respondent, he obtained the ITI certificate in the year
1994 and, therefore, did not possess five years of
experience as required under the relevant rule. If his
qualification as a diploma holder in Mechanical
Engineering is taken note of, he has not completed three
years of experience as he got the same in April, 1996
and on relevant date he did not possess such
qualification. Indeed in prescribing qualification and
experience, it is also made clear in the general
information instruction at Item No.6 that experience will
be computed after the date of acquiring the necessary
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qualifications. Therefore, when this requirement was
made very clear that he should have experience only
after acquiring the qualification, the view taken by the
High Court to the contrary either by the learned Single
Judge or the Division Bench does not stand to reason. "
(underline supplied)
11. Going by Rule 10(ab) of KS & SSR and the judgments
referred to above, where the Special Rules or Recruitment Rules
for a post in any service prescribe qualification of experience, it
shall, unless otherwise specified, be one gained by persons, after
acquiring the basic qualification prescribed for the post. Therefore,
the experience certificate produced by the 4 th respondent which
were acquired after the acquisition of the requisite qualification
alone could be considered to consider whether the candidate has
satisfied the qualification as prescribed in Ext.P1 notification. As
per Ext.P1 notification, the candidates should have experience of 7
years in Supervisory/Teaching post in an institute related to a
Mentally challenged children. Even going by the documents
produced along with the counter affidavit of the 4 th respondent, she
does not have that 7 years' experience after she has acquired basic
qualification prescribed for the post.
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12. In the light of the above, I am of the view that the 4 th
respondent in W.P.(C) No.20428 of 2023 was not having the
requisite qualification of 7 years' experience in Supervisory /
Teaching cadre in an institute related to mentally challenged
children, after acquiring the minimum qualification of Masters
Degree in the prescribed subject. Accordingly, Ext.P7 is set aside
with a consequential direction to the 1 st respondent to consider the
appointment of the petitioners from the rank list after following the
due procedures as expeditiously as possible, at any rate, within an
outer limit of one month from the date of receipt of a copy of this
judgment.
These writ petitions are disposed of as above.
Sd/-
VIJU ABRAHAM
JUDGE
sm/
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APPENDIX OF WP(C) 25355/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTIFICATION ISSUED BY
THE SECOND RESPONDENT DATED 13/01/2021.
Exhibit P2 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD
RESPONDENT DATED 13/07/2021.
Exhibit P3 TRUE COPY OF THE CURRICULUM VITAE OF THE
FIRST PETITIONER.
Exhibit P4 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE SUPERINTENDENT, GOVERNMENT MENTAL
HEALTH CENTER, THIRUVANANTHAPURAM TO THE
FIRST PETITIONER DATED 10/05/2018.
Exhibit P5 TRUE COPY OF THE AWARD OF RESEARCH DEGREE
IN PSYCHOLOGY OF THE FIRST PETITIONER
ISSUED BY THE UNIVERSITY OF CALICUT DATED
24/09/2019.3
Exhibit P6 TRUE COPY OF THE M.PHIL DEGREE
CERTIFICATE ISSUED BY THE BANGALORE
UNIVERSITY TO THE FIRST PETITIONER IN
MEDICAL AND SOCIAL PSYCHOLOGY.
Exhibit P7 TRUE COPY OF THE CERTIFICATE OF
REGISTRATION OF THE REHABILITATION
COUNCIL OF INDIA TO THE FIRST PETITIONER
DATED 23/04/2012.
Exhibit P8 TRUE COPY OF THE PROVISIONAL CERTIFICATE
OF PH.D IN PSYCHOLOGY ISSUED BY THE
UNIVERSITY OF CALICUT TO THE FIRST
PETITIONER DATED 23/09/2020.
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Exhibit P9 TRUE COPY OF THE CURRICULUM VITAE OF THE
2ND PETITIONER.
Exhibit P10 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE INDIRA GANDHI NATIONAL OPEN
UNIVERSITY TO THE 2ND PETITIONER DATED
14/08/2019.
Exhibit P11 TRUE COPY OF THE CERTIFICATE FOR MA
SOCIOLOGY ISSUED BY THE UNIVERSITY OF
KERALA ISSUED TO THE 2ND PETITIONER DATED
01/04/2011.
Exhibit P12 TRUE COPY OF THE M.ED CERTIFICATE ISSUED
IN RESPECT OF THE 2ND PETITIONER ON
SPECIAL EDUCATION MENTAL RETARDATION
ISSUED BY THE INDIRAGANDHI NATIONAL OPEN
UNIVERSITY DATED 12/02/2016.
Exhibit P13 TRUE COPY OF THE CERTIFICATE OF
REGISTRATION OF THE 2ND PETITIONER UNDER
THE REHABILITATION COUNCIL OF INDIA DATED
24/06/2008.
Exhibit P14 TRUE COPY OF THE CERTIFICATE OF RENEWAL
OF REGISTRATION ISSUED BY THE
REHABILITATION COUNCIL OF INDIA IN
RESPECT OF THE 2ND PETITIONER DATED
21/09/2017.
Exhibit P15 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE 1ST PETITIONER BEFORE THE MINISTER
FOR GENERAL EDUCATION, GOVERNMENT OF
KERALA, ATED 09/09/2021.
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Exhibit P16 TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE HUSBAND OF THE SECOND PETITIONER
BEFORE THE HON'BLE MINISTER FOR
EDUCATION, GOVERNMENT OF KERALA ON
29/10/2021.
RESPONDENT ANNEXURES
Annexure R1(a) True copy of the preliminary enquiry
report
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APPENDIX OF WP(C) 20428/2023
PETITIONER EXHIBITS
ExhibitP1 TRUE COPY OF NOTIFICATION DATED
13.01.2021 ISSUED BY THE 2ND RESPONDENT
ExhibitP2 TRUE COPY OF CURRICULUM VITAE OF THE 1ST
PETITIONER
ExhibitP3 TRUE COPY OF CURRICULUM VITAE OF THE 2ND
PETITIONER
ExhibitP4 TRUE COPY OF INTERIM ORDER DATED
15.11.2021 IN WP(C) NO.25355 OF 2021
ExhibitP5 TRUE COPY OF JUDGMENT DATED 06.06.2022 IN
WP(C)NO. 15154 OF 2022
ExhibitP6 TRUE COPY OF ORDER DATED 20.07.2022 IN
R.P NO. 673 OF 2022
ExhibitP7 TRUE COPY OF GO(RT)NO. 4154/2022/GEDN
DATED 15.07.2022 ISSUED BY THE 1ST
RESPONDENT
ExhibitP8 TRUE COPY OF CONSOLIDATED MARK LIST DATED
03.08.2021 PREPARED BY THE 5TH RESPONDENT
ExhibitP9 TRUE COPY OF COMPLAINT DATED 09.08.2022
SUBMITTED BY THE 1ST PETITIONER BEFORE
THE 6TH RESPONDENT
ExhibitP10 TRUE COPY OF MINUTES OF THE MEETING HELD
ON 29.03.2023 BY THE EXECUTIVE COUNCIL OF
STATE INSTITUTE FOR THE MENTALLY
CHALLENGED
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ExhibitP11 TRUE COPY OF COMPLAINT DATED 08.05.2023
SUBMITTED BY THE 1ST PETITIONER BEFORE
THE HON'BLE CHIEF MINISTER
RESPONDENT EXHIBITS
Exhibit R-4(a) True copy of certificate issued by the
Karuna Special School and Rehabilitation
Society, Nayarambalam
Exhibit R-4(b) True copy of Certificate issued by Mar
Gregorius Trust, Kalamassery
Exhibit R-4(c) True copy of Certificate issued by Janey
College of Allied Health, Eroor, Kochi
Exhibit R-4(d) True copy of Certificate issued by
Composite Regional Centre for skilled
Development Rehabilitation and
Empowerment of persons with Disabilities
under the Ministry of Social Justice and
Empowerment , Government of India.
PETITIONER EXHIBITS
Exhibit P12 A true copy of the certificate issued to
the 4th respondent by the Annamalai
University
